Introduction
The concept of legal pluralism has been a contested subject of research. Defined by Jacques Vanderlinden in 1972 as ‘the existence within particular society of different legal mechanisms applying to identical institutions’,1 legal pluralism has currently started to attract attention in Europe.
The presence of different groups of immigrants has raised the question of whether they should be treated differently according to their religious or original national laws. At the heart of the discourses taking place currently on legal pluralism lays the question of how to balance equality and difference.2Two theoretical points of view in this regard stand out. The first theoretical orientation advocates legal centralism in the state, considers it to be the basic foundation on which liberal-democratic nations rely on, argues for the state’s monopoly on legal productions and a monistic conception of law and warns all the same of depriving the state of its capacity as a social actor. It also highlights the negative consequences of legal pluralism on weak groups within the minorities, such as women and children; and insists on equal protection of rights within one society through the application of a ‘single and comprehensive vision of justice’. The second theoretical standpoint argues for legal pluralism, maintains that legal centralism is more relevant within a Western model jurisprudence, that it ignores the experience of non-Western nations. Accordingly, legal pluralism indicates that state law is only one of many levels, and it means a plurality of social fields and produces of norms, which are in partial interaction with each other. It also insists that legal pluralism is the adequate system that guarantees the protection of minorities’ rights and their entitlement to be different.3
This discussion, while concerning itself with describing legal and social realities in Western and non-Western states, has rarely touched on the political function of legal pluralism.
It also has seldom elaborated on how legal pluralism contributes to the rise of what one could call parallel or closed societies/communities, and most importantly how the interaction between the two and the application of legal pluralism reflect on the rights of members of these parallel communities within the state, especially from a human rights perspective.From a theoretical point of view, however, it is important to differentiate between two levels of perspectives:
a de jure level where different types of legal systems are applied by the state to different ethnic communities within its boundaries. Accordingly, the state itself seems to designate these communities as distinct and different, as with the case, for instance, of religious minorities in Islamic states, native Indians in the US and Canada, and members of ethnic minorities/migrants in Britain and Germany;
b de facto level where different (written and/or unwritten) rules of behaviour and values seem to distinguish a community from its general society.
The changing demographic structures with Western European societies gave a new push to this discussion. Waves of immigrants moved to Western European societies in the 1950s and 1960s for different reasons: some came because of economic reasons (workers from Southern Europe and Turkey helping in rebuilding Germany during its years of economic boom) and others as members of previous colonies of their hosted states (North Africans in France and Indians and Pakistanis in the UK). Another wave of migration followed in the 1980s, 1990s, and the first two decades of this millennium as a result of the wars and political upheavals, e.g. Yugoslavia, Sri Lanka, Somalia, Iraq, Syria, etc.
Some of the new groups of immigrants started to organise themselves along ethnic and religious lines and in some cases created separate cultural and social entities, sometimes functioning with different cultural norms than those prevalent in the society. The debate on parallel societies and/or the construction of ‘parallel societies’ as an ‘image of the other’ has been debated in Germany since the German sociologist Wilhelm Heitmeyer first used the term in the early 1990s and was later criticised by Wolfgang Kashuba.4
Within the UK, three general groups have been calling for the introduction of forms of Islamic law, shari’a, into British legal system:
1 Islamic and Islamist organisations.
The terms Islamic and Islamist have different meanings. Islamic organisations often represent a traditional if not conservative reading of Islam, are led by individuals of traditional/conservative religious background, and often seek to impose a religious identity on ‘Muslim community’ members. Islamist organisations espouse a political agenda that aims to Islamise migrant communities of Islamic faith. Some Islamic organisations have members who espouse the ideology of Islamism and some do not. Often they work together and support each other’s religious demands. Together they often claim to be the sole representative and voice of ‘Muslim communities’ and their experts on their ‘needs’.2 High officials, lawyers, judges, or political personalities seem to be concerned about how Muslim communities are becoming integrated in their respective countries, and consider the move towards shari’a law inevitable if Muslims are to integrate ‘successfully’. Dr Rowan Williams, the former archbishop of Canterbury, is one famous example; another is Marion Boyd, Ontario’s attorney general. Some of these people may be calling for soft legal pluralism for pragmatic political reasons. They earnestly believe that combating Islamic extremism - a serious problem in Britain - will require giving small concessions to the Muslim community, such as allowing them to live by Islamic family laws. Britain’s former Lord Chief Justice Baron Phillips of Worth Matravers (equivalent to the chief justice of the US Supreme Court) made a comment that might be understood in this light. It is no coincidence that Islamic and Islamist organisations in Britain make the same argument: ‘Give us Islamic law in family affairs to curb extremism’.5
3 Academics in a range of social science fields, specifically legal anthropology, law, and sociology, who are leading a theoretical and intellectual discourse about the state: does it have a monopoly on legal productions and norms, on minorities and multiculturalism? They maintain that legal centralism is a Western model of jurisprudence, that it ignores the experience of non-Western nations.
They blame colonial powers for depriving people in developing countries of access to their own traditional and customary laws, imposing their version of positive law on their colonies. They cite a ‘more complex’ relationship between law and society, one ‘where law is conceptualised as more plural, not located entirely in the state’.6 Accordingly, legal pluralists hold that state law is only one of many levels of law; their idea implies a plurality of social fields and producers of norms, which interact somewhat with each other. They also insist that legal pluralism is an adequate system that guarantees the protection of minorities’ rights and of their entitlement to be different.7 They argue that an evenhanded sensitivity to difference requires an abandonment of the formal vision of equality, one that assumes that all citizens are inherently identical. Instead, the legal system should take cognisance of the identity and values of different sections of the population, no matter how distinctive these values maybe.8 Within the British discourse on weak legal pluralism, some strong advocates are the American John R. Bowen, who is Dunbar-Van Cleve Professor in Sociocultural Anthropology at Washington University in St. Louis; Roger Ballard, the director of the Centre for Applied South Asian Studies; and Tariq Modood, a British-Pakistani professor of sociology, politics, and public policy at the University of Bristol.Members of these three groups are often of the opinion that weak legal pluralism is just one out of many instruments for resolving conflicts, and that it is an extension of a right already given to the Jewish minority: a right to arbitration tribunals in a system called Beth Din. And, they say, since the Jews already have it, why not Muslims as well?
They emphasise that this instrument of conflict resolution is voluntary, that they only support it with safeguards that ensure respect for human rights, especially for women’s rights.
Accordingly, if a member of a religious minority does not want to be ruled by these laws, all she or he has to do is to opt out and leave the community.And they often argue that the Western legal tradition, which is based on legal centralism and state monopoly over legal productions and a monistic conception of law (the basic foundation on which liberal-democratic nations are instituted) is Euro-American centric and ignores the experience of non-Western nations.
Those calling for soft legal pluralism in the UK are often shaped by strong or weak cultural relativism. The strong cultural relativists hold that ‘culture is the principal source of the validity of a moral right or rule [...] the presumption is that rights (and other social practices, values, and moral rules) are culturally determined’.9 The weak cultural relativists, on the other hand, assert that ‘culture may be an important source of the validity of a moral right or rule. Universality is initially presumed, but the relativity of human nature, communities, and rights serves as a check on potential excesses of universalism.’10
Absent from this plead for the introduction of Islamic law is the actual experience with legal pluralism in non-Western countries specifically with its often grave political and human rights consequences.11 Also absent is clarity about the type of Islamic law being used in this so-called method of conflict resolution. No one considers the social context within which this law is being implemented. The diversity and multitude of positions towards Islamic law, the critical discourse in Islamic countries among civil society actors and intellectuals, and their attempts to change Islamic laws: none of this seems to be relevant to this discourse. Indeed, the discourse is often very academic and theoretical, ignoring the settings or circumstances within which women are living in closed societies. It is as if Muslim women, Muslims, and Islam itself had been crafted and constructed separate from their historical, political, social, and religious contexts. Based on fieldwork conducted by the author in 2013 and numerous visits later, the results of which were published in a book in 2016 with the title Women and Shatia Law. The I^mιt^ac^t^fLegal PIutaIismin the 13κ,t,hlschapt,er presents the context and consequences of the application of Islamic law in the UK Shari’a Councils and Muslim Arbitration Councils.